The Massachusetts Supreme Judicial Court--hardly a reactionary body--made the distinction between small vendor refusals that do and don't harm access meaningfully, in Attorney General v. Desilets, 636 N.E.2d 233, 240 (Mass. 1994), one of the cases Eugene referred to involving small landlords and unmarried straight couples. The court denied summary judgment to the state in light of the landlord's claim under the Massachusetts constitution's free exercise provision, which is governed by the compelling interest test. Without supporting facts in the record or in legislative findings, we are unwilling to conclude that simple enactment of the prohibition against discrimination based on marital status establishes that the State has such a substantial interest in eliminating that form of housing discrimination that, on a balancing test, the substantial burden on the defendants' free exercise of religion must be disregarded. It is no doubt true that many men and women are cohabiting in the Commonwealth and that numbers have increased in the last twenty years. We have no sense, however, of the numbers of rental units that might be withheld from such people because of the religious beliefs of the owners of rental housing. Although the prohibition against discrimination based on marital status was enacted over twenty years ago (St.1973, c. 187), this is the first case of this character that has come to our attention.
We have no indication, beyond the facts of this case, whether the rental housing policies of people such as the defendants can be accommodated, at least in the Turners Falls (Montague) area, without significantly impeding the availability of rental housing for people who are cohabiting or wish to cohabit. Market forces often tend to discourage owners from restricting the class of people to whom they would rent. On the other hand, discrimination of the sort challenged here may present a significant housing problem if a large percentage of units are unavailable to cohabitants. Of course, as Eugene notes, other courts have said there is a compelling interest in preventing statutorily prohibited discrimination in each and every instance, regardless of whether there are ready alternatives. ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu> SSRN: http://ssrn.com/author='261564<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564> Weblog: http://www.mirrorofjustice.blogs.com ---------------------------------------------------------------------------- ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Friday, August 14, 2015 12:07 PM To: Law & Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision On Aug 14, 2015, at 6:03 AM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 2. The “single grocer in town” hypothetical may be relevant to the compelling government interest inquiry – maybe one could argue that the government has a compelling interest in making sure that everyone has access to food without having to drive to the next town, and therefore requiring the grocer to sell to the KKK sympathizers, or for that matter to sell food that he knows will be used at the KKK picnic. But in the much more typical town in which there are many grocers, most of which are quite happy to sell to anyone who has the money, denying the exemption isn’t necessary to serve the government interest. Is there legal precedence establishing this hypothetical into law? It seems to me that it may apply to the county clerk who is refusing to issue any marriage licenses or allow any assistant to issue them and instead send couples to the next county.
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